[Urbanstudy] SC judgement on tanks
Curt Gambetta
cugambetta at yahoo.com
Thu Mar 23 01:06:39 IST 2006
CASE NO.:
Appeal (civil) 1251 of 2006
PETITIONER:
Intellectuals Forum, Tirupathi
RESPONDENT:
State of A.P. & Ors.
DATE OF JUDGMENT: 23/02/2006
BENCH:
Ruma Pal & Dr. AR. Lakshmanan
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Civil) Nos. 7196-7197 OF 2001)
Dr. AR. Lakshmanan, J.
Leave granted.
The present matter raises two kinds of questions.
Firstly, at a
jurisprudential
level, it falls on this court to lay down the law
regarding the use of
public lands or
natural resources, which have a direct link to the
environment of a
particular area, by
the Government. Secondly, this court should decide, on
the facts of the
present case,
the order to be passed with respect to two tanks in
the Tirupathi area
Peruru, and
Avilala.
The above two appeals were filed by a registered
society called, the
Intellectuals
Forum, against the respondents herein. The contesting
parties are the
State of Andhra
Pradesh represented by its Chief Secretary, Tirupathi
Urban Development
Authority
represented by its Vice-Chairman and the A.P. Housing
Board represented
by its Vice-
Chairman and Housing Commissioner.
The present case relates to the preservation of and
restoration of
status quo
ante of two tanks, historical in nature being in
existence since the
time of
Srikrishnadevaraya, 1500 A.D.
The tanks are called `Avilala Tank' and `Peruru Tank'
which are situated in
suburbs of Tirupathi Town which is a world renowned
popular pilgrim
centre having
every day in-flow of tourists between one lakh to two
lakhs.
GRIEVANCE:
Systematic destruction of percolation,
irrigation and
drinking water tanks in
Tirupathi Town, namely, Avilala and Peruru Tank and
alienation of the
Avilala Tank bed
land to Tirupathi Urban Development Authority (In
short, TUDA) and A.P.
Housing
Board under G.O. Ms. No. 84 Rev. dated 28.1.1994 and
Peruru Tank bed
land to
Tirumala Tirupathi Devasthanam (In short, TTD) for
housing purposes
under G.O. Ms.
No. 181 Rev. dated 15.3.1991, which are impugned in
Writ Petition Nos.
8650 of 1994
and 7955 of 1994 respectively.
According to the appellant, the cry of socially
spirited citizens
calling for judicial
remedy was not considered in the right perspective by
the Division Bench
of the High
Court of Andhra Pradesh despite there being
over-whelming evidence of
the tanks
being in existence and were being put to use not only
for irrigation
purpose but also as
lakes which were furthering percolation to improve the
ground water
table, thus serving
the needs of the people in and around these tanks. It
was submitted
that the High
Court has given precedence to the economic growth by
completely ignoring
the
importance and primacy attached to the protection of
environment and
protection of
valuable and most cherished fresh water resources.
The Government without
considering the well planned development of Tirupathi
town alienated the
Tank bed
lands in favour of some governmental agencies for
valuable
consideration. It was
further submitted that since Tirupathi is in the
draught prone region
called Rayala
Seema, there is always shortage of water and the
District machinery is
constantly put
on alert for devising schemes for the purpose of
improving the existing
water resources.
An Engineering Team which is assigned such a task had
visited in and
around the foot-
hills of Tirupathi and Tirumala for the purpose of
identifying sources
of fresh water and
suggestions to be given for their improvement. Apart
from suggestions,
the team of
Engineers, in the minutes of the meeting held on
26.5.1990, suggested that
improvement of feeder channels (Vagus) for Peruru tank
and Avilala tank
would
improve the percolation of all the surrounding areas
and that there is
enough potential
for the tanks to get enough water if the feeder
channels are improved.
It was also
submitted by representation that the Commissioner of
Land Revenue to
retain Peruru
tank and Avilala tank, since retention of water in the
said tanks would
improve the water
table which is already very low in the surrounding
wells and also to the
east of the tanks
before of gradients. In the meantime, the Government
passed G.O.Ms. No.
181
Revenue dated 15.3.1991 alienating an extent of 150
acres of land which
belongs to
the tank bed area of Peruru tank to Tirumala Tirupathi
Devasthanam (In
short, TTD).
The members of the appellant's forum as also the
various other socially
spirited citizens
have written letters to various authorities of the
Government requesting
the said
authorities including the Chief Minister not to
alienate the tank bed
areas of both the
tanks for housing or for any other activity except for
the purpose for
which it is meant.
However, the Government issued G.O. Ms. No. 84
Revenue dated 28.1.1994
authorizing the District Collector, Chittoor to
alienate 90 acres of
land belonging to
Avilala tank bed area to A.P. Housing Board. This
Government order
further directed
that the TUDA should provide a Master plan for the
entire area of 170
acres so as to
ensure integrated development of Avilala tank area.
Since, there was no response to the representations
made, the appellant
filed
two writ petitions in the High Court challenging the
Government Orders
passed by the
Government of Andhra Pradesh by which the District
Collector, Chittoor
was directed to
hand over the tank bed areas of Avilala tank and
Peruru tank to TTD and
to A.P.
Housing Board.
Writ Petition No. 7955 of 1994 was filed assailing
G.O. Ms. No. 181 dated
15.3.1991, in respect of alienation of Peruru tank bed
land to TTD and
Writ Petition No.
8650 of 1994 was filed assailing G.O. Ms. No. 84 dated
28.1.1994
alienating Avilala
tank bed area land to A.P. Housing Board. The
respondents filed their
counter
affidavits opposing the writ petitions. The Indian
Medical Association
also made a
similar plea that the Government should immediately
withdraw its G.Os.
alienating
Avilala tank and Peruru tank and restore them
urgently as percolation
tanks, to
improve the ground water table. This prayer was made
by the Indian Medical
Association due to alarming increase of the toxic
contents like
Fluorides and other salts
in the underground water due to steep fall in the
underground water
table level. A
feasibility report on Peruru tank was prepared by Sri
Venkateswara
University College
of Engineering, Department of Civil Engineering,
Tirupathi. Several
other individuals
filed affidavits supporting the cause of the
appellant.
A counter affidavit was filed by the Government,
Revenue Department, in
Writ
Petition No. 8650 of 1994 whereby the said respondent
justified the
issuance of G.O.
Ms. No. 84-Revenue Dept. dated 28.1.1994 stating that
the same was in
public interest.
A counter affidavit was also filed by respondent No.3,
the Law Officer
of the Housing
Board stating that the Housing Board has invested
Rs.88.43 lakhs towards
development of land and thus the Board has invested in
all a sum of Rs.
1,78,43,000/-
and prayed for dismissal of the writ petition. An
additional counter
affidavit was also
filed by respondent No.3 stating that the area is
fully developed.
Likewise, Shri P.
Krishnaiah, the Executive Officer of the TTD filed
affidavit stating
that a number of
dwelling have come up in the entire area and the
prayer in the writ
petition could not be
granted and prayed for dismissal of the writ petition.
By the impugned and common judgment dated 28.9.2000,
the Division Bench of
the High Court finding no illegality or irregularity
in the action of
the respondents
dismissed both the writ petitions. Aggrieved by the
dismissal of the
writ petitions, the
appellant has filed these appeals by way of special
leave petitions.
We heard Mr. G. Ramakrishna Prasad, learned counsel
appearing for the
appellant-Forum, Mr. V.R. Reddy, learned senior
counsel appearing for
the TTD, Mr.
P.P. Rao, learned senior counsel Mr. Jaideep Gupta,
Mr. D. Ramakrishna
Reddy, Mr.
P. S. Narasimha, learned counsel and Mr. Anoop G.
Chaudhary, learned senior
counsel for the respective parties.
Elaborate arguments were advanced by the respective
counsel appearing for
the parties to this action. We have been taken
through the entire
pleadings, documents
and annexures filed along with the appeals and also
the report submitted
by the Expert
Committee and the objections filed by the parties to
the said report.
Mr. G. Ramakrishna Prasad, learned counsel appearing
for the appellant made
the following submissions:
1. The High Court has failed to appreciate
that in the light of
over-whelming
evidence with regard to the Tank beds being put in use
for irrigation,
drinking purpose, and being used as percolation tanks
to improve the
groundwater table and quality of underground water in
the neighbouring
areas and many villages including Tirupathi town, the
High Court
committed error in holding that the water tanks in
issue are now non-
existent.
2. The High Court committed an error in coming
to the conclusion
that the
urban development could be given primacy over and
above the need to
protect the environment and valuable fresh water
resources.
3. The High Court is not correct in holding
that if the
Government is not
permitted to use the lands in question properly it
will ultimately go
into the
hands of land grabbers and anti-social elements and
they will be
converted into slums and that such lands will be used
as dumping
grounds.
4. The High Court has failed to notice the
fact that the need
for sustainable
development cannot be ignored, could not do away with
and could not
cause harm to the environment in the name of urban
development and
that certain acts of omissions and commissions on the
part of the
respondents in not taking proper measures for the
preservation of the
Peruru tank, the flow of water into the tank is
reduced every year as most
of its feeder channels are either spoiled or closed by
unauthorised
encroachers.
5. The respondents have failed to take
necessary measures to
remove the
encroachments and repair the feeder channels and as a
result, the
natural flow of water into the tank during the rainy
season is reduced. On
account of reduction in the water catchment area due
to encroachments,
the quantity of water collected in the tank is getting
drastically depleted
year by year and that the water table in the
neighbouring area of the tank
including a colony is going down and even the ground
water available is
becoming more and more saline with high fluoride
content every year and
becoming unfit for drinking purposes.
6. It was submitted that the respondents are
under
constitutional obligation
to protect the environment. The tanks in question is
a public property in
which each and every ayacutdar has got a property
right and this right
cannot be taken away by the Government to their
detriment and that the
communal property cannot be diverted for the purpose
of construction of
houses to section of people.
Mr. V.R. Reddy, learned senior counsel, appearing for
TTD submitted that
TTD
gave its own land to Sri Padmavathi Mahila
Viswavidyalayam and in lieu
of the land so
given by it, the State Government under G.O. Ms. No.
181 Revenue dated
15.3.1991
has given Ac.150 m Perur tank to TTD. TTD took
possession of the said
land on
19.3.1993. In 1984 itself, the tank bed became barren
and there is no
water supply to
the tank. The agricultural lands which were dependent
on the tank water
which was
used only for agricultural purposes, therefore, became
housing
colonies. There is no
source of water now to the tank and it is not possible
to store water in
the tank. Tirupathi
is a growing town whose population is going up
constantly demanding more
and more
house sites and housing accommodation for the growing
town population.
The pilgrim
inflow is also steadily growing requiring more
facilities. An
agricultural tank which has
become dry by 1984 itself and which is no longer
capable of being used
for agricultural
irrigation purposes as it gets no water any more being
surrounded by the
expanding
town, roads and built up areas cannot anymore be
maintained as a tank in
its original
form. There are other tanks and dams and water supply
schemes being
undertaken in
Tirupathi having regard to their feasibility. The
High Court has
considered these aspects
also, he submitted.
TTD is one of the well known Devasthanams in the
country which is
undertaking
projects of general public welfare consistent with its
policy. It is
doing everything
possible in Tirupathi and in Tirumala where the World
famous Sri
Venkateswara Swami
Temple is situated, to preserve and improve the
natural environment.
The tank in
question i.e. Peruru tank cannot be maintained as a
tank in the present
situation and it
has ceased to be a tank long ago except in name. It
has been obtained
by it in lieu of its
own land it has given for a public purpose of a
women's university and
requires it for its
own optimum use. The objection sought to be taken by
the appellant as a
public interest
objection is without any merit or substance as far as
Peruru tank is
concerned on the
facts and circumstances of the case.
Mr. P.S. Narasimha, learned counsel appearing for A.P.
Housing Board,
submitted that S.No. 18/1 of Avilala village is on the
outskirts of
Tirupathi town
measuring about 187 acres was classified as Avilala
tank Poramboke. The
said tank
was abandoned as far back as in the year 1992. The
Tank area was
bulldozed and the
entire land was levelled. The cultivation particulars
of the Ayacut in
this tank reveals that
no lands were being irrigated from the water derived
from this tank
right from the year
1395 F i.e. the year 1984 A.D. The feeder source for
Avilala tank
namely (i)
Ramayapalli Kasarkaluwa (ii) Kasarkaluwa of
Vedantpuram Agraharam and (iii)
drainage water of Timlagunta wet fields (iv) Nadinvaka
all these
sources got defaced
and there has been no scope for accumulation of water
in the tank. It
was also
observed that even after sinking that well to a depth
of about 60 feet,
the land was not
receiving any water from any ground resources after
construction of
Kalyani Reservoir.
Therefore, proposal for abandonment of tank was
submitted by the Revenue
Divisional
Officer, Tirupathi to the District Collector in the
years 1988 and
1992. Thereafter, public
notices were issued inviting objections but no
objections were filed by
anyone.
Thereafter a technical opinion was given by the
Executive Engineer of
the Irrigation
Department in favour of the alienation of the said
land to an extent of
98 acres. Even
the Gram Panchayat had passed resolution on 14.8.1988
proposing to
alienate 98 acres
in S.No. 18/3 carved out S.No. 18/1 of Avilala Village
in favour of A.P.
Housing Board.
The Government have issued orders in G.O. Ms. No. 691
dated 18.7.1989
alienating 98
acres of land for the purpose of constructions of
house under the rental
housing scheme
for the Government employees. The said land has been
levelled in the
year 1992 after
taking possession. The Housing Board has undertaken
infrastructural
facilities by laying
of B.T. Roads, electrical lines, digging bore wells
apart from levelling
and plotting the
land and a sub-station 33 K.V. capacity has been
established by the A.P.
Electricity
Board.
It was submitted that the A.P. Housing Board paid Rs.
90 lakhs towards
the cost
of the land @ Rs.1 lakh for each acre to the
Government and also spent a
sum of Rs.
88.43 lakhs towards development of the land so far.
Thus, in all A.P.
Housing Board
has invested a sum of Rs.1,78,43,000/- and the further
development was
stopped in
view of the pendency of the writ petition.
The A.P. Dairy Development Corporation has established
Balaji Dairy in a
portion of the land under reference by spending over
Rs.8 crores. All
these amounts
were spent by the Government from its own expenditure
from out of public
funds. Apart
from the above, the Land Acquisition proceedings were
initiated for
laying of approach
road and compensation thereafter has been paid by the
Revenue Department.
Mr. P.S. Narasimha further submitted that the laudable
objective of
maintenance
of ecology, environment and preservation of water
resources are subject
to the vagaries
of nature and in the realm of technical matter, there
cannot be
judicially manageable
standard for granting any relief.
Arguing further, he submitted that there are many
factors and reasons
attributing
to depletion of ground water table due to the
expanding urbanization and
increasing the
non-agricultural activities. All such activities have
not the sanction
of the law supported
by legislative mandate under the A.P. Urban Areas
Development Act. The
administration has been entrusted with the
responsibility of ensuring
equitable urban
growth by balancing ecological and environmental
interest and in the
instant case, the
administration has taken all the proceedings and
attending precautions
to act in larger
public interest in general for which the appellant
cannot have any
grievance.
Mr. Jaideep Gupta, learned senior counsel, appearing
for TUDA filed a
detailed
reply to the appeal. He invited our attention to the
elaborate and
detailed reply affidavit
filed by them. It is seen from the affidavit that the
proposals for
abandonment of the
erstwhile tank were submitted by the Revenue
Divisional Officer,
Tirupathi with
reference to the Collector's letter No. B-1/7089/88
dated 17.9.1988. A
notice for public
response to the said proposal was published in the
village but no
objections were
received. As the land was in the past classified as a
tank poramboke,
technical opinion
had already been obtained and the Irrigation
Department opined that
there was no
objection for alienation of the said land. As per the
report of the
Revenue Divisional
Officer, Tirupathi submitted in his letter No. Roc.
No. G/2016/88, dated
6.9.1988 that the
Avilala Gram Panchayat in its resolution dated
14.8.1988 had resolved to
alienate an
extent of 90.00 acres in Sy. No. 18/3 (carved out from
18/1) of Avilala
village in favour of
A.P. Housing Board.
In the above circumstances, the Government have
alienated 90 acres of
land in
Sy. No. 18/3 carved out from Sy. No. 18/1 in favour of
A.P. Housing
Board for
construction of houses under rental housing scheme for
Government
employees vide
G.O. Ms. No. 691 dated 10.7.1989 of the Revenue (Assn.
IV) Department.
The District
Collector, Chittoor in his letter No. B1/15246/90
dated 14.7.1992
addressed to the
Secretary to the Government, Revenue Department has
informed that the
Ayacutdars
have also given their consent for abandonment of the
erstwhile tank and
to treat the
Ayacut as dry land since the tank does not have any
water source.
After the Government have alienated an extent of 90
acres of land to A.P.
Housing Board and 1.12 acres to A.P.S.E.B. and 5 acres
towards
compensation for
private lands acquired for approach road, there
remains a balance of 96
acres of land.
Accordingly the Revenue Divisional Officer, Tirupathi
in his letter
G/5234/92 dated
16.9.1992 addressed the District Collector that the
balance land
available can be better
utilized by handing it over to various agencies for
developmental
purposes, because of
its proximity to Tirupathi town and adjoining
residential colonies like
Vaikuntapuram,
Bairagipatteda etc. There has been a substantial
growth in population
of Tirupathi town
coupled with physical expansion of the town and
consequent conversion of
agricultural
lands into pucca residential area and layouts. The
population of
Tirupathi is growing day
by day and to cater to the growing demand for housing
this authority had
requested the
Government for alienation of 90 acres of land for
sites and services
programmes.
Accordingly, the Government in G.O. Ms. No. 84
Revenue (Assn.IV)
Department,
dated 28.1.1994 alienated 90 acres of land in Sy. No.
17/1 of Avilala in
favour of this
authority. Based on the Government Orders and
proceedings of the
District Collector,
Chittoor in D.O. Toc. No. B/1/15246/92 dated 3.3.1994,
the Mandal
Revenue Officer,
Tirupathi Rural Mandal has handed over the possession
of 65.19 acres of
land on
18.4.1994 to this authority.
Mr. Gupta further submitted that the Urban Development
Authorities are
bound
to regulate the massive urban growth and migration of
people with
appropriate
development plans to prevent formation of slums and
consequent urban
decay.
Accordingly, the TUDA has taken up development of new
Satellite
townships around
Tirupathi to relieve congestion of the existing
township and one such
satellite town is
Rajiv Nagar being developed in the land many years
back was under the
then existing
Avilala tank in Sy. No. 18/1.
As it is evident from the joint inspection of the
Joint Collector,
Chittoor,
Superintending Engineer, Irrigation, Chittoor, etc. on
dated 4.4.1992,
there has been no
source of the supply channel for maintenance of the
Avilala tank and it
has not been
practicable either to restore it as irrigation tank or
even as a
percolation tank any longer.
However, as a part of the development of a satellite
township, it is
proposed to provide
lung spaces, water harvesting structures in an extent
of 18 acres of
land benefiting the
people in Sy. No. 18/1 of Avilala village and Rajiv
Nagar area by TUDA
and A.P.
Housing Board.
After obtaining approval from the State Government,
TUDA announced the
scheme to the public on 18.3.2001, 26.3.2001 and
30.3.2001 by giving
wide publicity in
the newspaper and inviting applications for
participating in the
auction. The plots were
allotted to the public in a public auction as per the
orders of the
Government vide G.O.
Ms. No. 84 Revenue (Assn.IV) Deptt. Dated 28.1.1994.
The auction was
conducted on
13th, 14th and 15th April, 2001 and plots were
allotted to the
successful bidders
immediately i.e. before the issue of status quo order
of this Court.
TUDA has already
taken up plans of action to provide in the new
township partly with the
amounts
received from open auction:
It is also seen from the reply affidavit filed by TUDA
that a comprehensive
scheme name "HARITA" has been jointly promoted by
Forest Department, TTD
and
TUDA at a cost of Rs.24.83 crores to be implemented in
five years from
2000 to 2005.
The scheme had already commenced and massive
plantation programme was
taken up by planting 16 lakhs trees during the year
2000-2001 apart from
other
schemes that have been envisaged in the plan.
The National Remote Sensing Agency, Department of
Space, Government of
India in their report titled "Land use Land cover
monitoring in TUDA
area with special
reference to Avilala tank and environs Tirupathi,
Andhra Pradesh" has
conducted
detailed study with the help of satellite imageries on
Avilala tank over
a period of time.
In its report, it is stated that the tank in earlier
days i.e. earlier
to 1970 was drained
mostly by natural springs located in the head of the
region of the
catchment. Over a
period of time, the spring got dried up due to
various geological
factors with no source
of surface flow. Also the small streams which were
draining to the tank
were disturbed
and occupied, with the result the tank remained dry
with part of it
covered with scrub
since 1976 onwards.
It is also stated in the report that as per the
satellite image of
February, 2001
there are about 232 tanks identified in TUDA area.
Most of the tanks
are located along
the foot hills of Tirumala hills and plains of
Swarnamukhi river.
Kalyani reservoir is the
major one in the area. Considering the location as
well as distribution
about 20 tanks
are identified for conservation and future development
to meet the urban
water
requirement. However, other existing tanks may also
be fenced and
preserved to meet
the future requirement.
The TUDA along with the support of other Government
Departments have been
making conscious efforts for conserving and preserving
potential tanks
in TUDA region
as per the recommendations of National Remote Sensing
Agency and other
experts in
the field. In this direction, the TUDA has already
initiated action in
developing
Tiruchanoor tank in Sy. No. 253 of Tiruchanoor at a
cost of Rs.30 lakhs
under Phase I
Scheme which includes desilting, strengthening of
bunds, landscaping of
bunds and
tree plantation. However, there is no possibility at
all of restoring
the abandoned Avilala
tank as per the scientific data available with TUDA
which can be at best
developed as a
satellite township with all facilities thus
contributing to the planned
urban growth of
Tirupathi and decongesting the main township.
Mr. Anoop G. Chaudhary, learned senior counsel
appearing for the State of
Andhra Pradesh drew our attention to the detailed
counter affidavit
filed by the State of
A.P. through its Joint Secretary to the Government
Revenue Department
wherein the
Government has explained to this Court as to how the
impugned G.O.'s
alienating the
lands in favour of TTD, TUDA and Andhra Pradesh
Housing Board for public
purposes
were issued. According to Mr. Anoop Chaudhary, there
is nothing illegal
in issuing in
G.Os. It is not violating anybody's fundamental
rights. An extent of
180 acres of land
was tank bed land of Avilala tank. This tank was an
abandoned tank ever
since 1984
as the channel source of this tank was closed due to
construction of
Kalyani dam and
because of lack of water this tank was no longer used
for storage of
water. As it was
an abandoned tank and was no longer in existence and
the land became
plain and
considering the matter and report of the District
Collector, the
Government issued
orders in G.O. Ms. No. 691 Revenue Department dated
10.7.1989 for
alienating an
extent of 90 acres of land to A.P. Housing Board for
the purpose of
rental Housing
scheme for Government employees on payment of Rs. 1
lakh per acre by the
Housing
Board and before this land was alienated a notice was
published in the
village calling
for objections by the Revenue authorities and no
objections were
received in pursuance
of the said notice. The Ayacutdars have also
consented for the
alienation of the land.
Thereafter, after obtaining the opinion of the
concerned Executive
Engineer of the
Irrigation Department and the report of the District
Collector, the
above Government
Order was issued.
Concluding his arguments, he submitted that there is
ample material on
record
showing that these tanks were abandoned long back and
they were no
longer serving
as water storage tanks more particularly, as their
supply channels have
been dried up.
On 5.12.2003, this Court passed the following order:
"The Secretary, Ministry of Water Resources,
Government of India is directed to constitute a
committee of
experts for the purpose of submitting a report on the
question
whether the two tanks, namely, the Peruru and Avilala
or either
of them can be utilized for water harvesting. The
report shall
be submitted to this Court within a period of six
weeks from the
date of the communication of this order. The Registry
is
directed to forward a set of the documents, which have
been
filed before this Court to the Secretary for being
placed before
and considered by such Committee. The committee will
hold
local inspection. Before it does so it shall give
notice to the
concerned advocate-on-record. The State respondent
will
provide such documents as may be required by the
Committee
for the purpose of submitting the report.
List the matter thereafter."
The Government of India constituted a Committee for
the purpose of
submitting
its report to this Court :
The term of reference of the Committee was to submit a
report on the
question
whether the two tanks namely, the Peruru and Avilala
or either of them
can be utilized
for water harvesting. Pursuant to this, the Committee
visited Tirupathi
on 19th and 20th
January, 2004 for local inspection and necessary
investigations. During
the visit, a
detailed discussion was held with the representatives
of TUDA, TTD and
members of
the Intellectual Forum.
The Committee submitted its detailed inspection report
on 21.1.2004.
The appellants submitted its objections to the report
of the Committee
and the
respondents supported the inspection report.
In the above background, the following questions of
law arise for
consideration
by this Court:-
1. Whether the Urban Development could be
given primacy over and
above
the need to protect the environment and valuable fresh
water resources?
2. Whether the action of the A.P. state in
issuing the impugned
G.Os could
be permitted in derogation of Articles 14 and 21 of
the Constitution of
India as also the Directive Principles of State Policy
and fundamental
duties enshrined in the Constitution of India?
3. Whether the need for sustainable
development can be ignored,
do away
with and cause harm to the environment in the name of
urban
development?
4. Whether there are any competing public
interests and if so
how the
conflict is to be adjudicated/reconciled?
We have already referred to the directions issued to
the Government of
India to
constitute a Committee of Experts for the purpose of
submitting a report
on the question
whether the two tanks namely, the Peruru and Avilala
or either of them
can be utilised
for water harvesting. The Expert Committee took into
account the
factors that had led to
the depletion of influx of water to Peruru Tank in the
report and
observed in paragraphs
3 & 4 of the Report.
According to the learned counsel appearing for the
TTD, Peruru tank as a
water
body had three main sources of influx of water which
were as follows:
1. Overflow of water through feeder channel
from the combined
Kalyani
River Swarnamukhi river The Kalyani river joins
Swarnmukhi river
near Agasteeswara Temple. At that point, the overflow
of water in the
combined rivers as going to peruru tank through a
feeder channel of
about 1.6 Km. Length. After the construction of the
Kalyani Dam on
Kalyani River in the year 1974, the flow of water from
Kalyani river into
Swarnamukhi river considerably reduced. As a result,
there was no
overflow of water going to the feeder channel, which
over the years has
become defunct due to its bed level being at a higher
level than the
riverbed. Since the feeder channel has become defunct
and abandoned,
a road has been constructed for the temple by filling
up the channel.
The Expert Committee, after observing the above, in
paragraph 3 of its
report under Peruru tank has opined as follows:
"The revival of old feeder channel which involves
deepening of the existing channel and restoring
the channel in the initial reaches is not
considered cost effective in view of the meagre
quantity of river water availability for a very short
period."
2. Catchment area of 42.9 sq.Kms. TTD under
"Neeru Meeru"
programme, constructed 22 check dams, 9 percolation
tanks,
437 rock fill dams and contour trench on a length of
1.22 km for
improving the water table and water conservation and
efficient
use of rain water without wastage in the catchment
area falling
under S.V. Zoological Park.
The Expert Committee, after observing the above in
para 4 of
its report has stated that the inflow of water into
Peruru tank
has been reduced considerably due to the construction
of
check dams etc. While it is so, it is also to be
noted in this
context, that on account of Kalyani Dam a water body
has
come into existence in the form of Reservoir is spread
over an
area of 31065 acres and holds 910 mc. Ft. Water when
filled to
capacity. Similarly, Dalavai Tank, which is created
in the
Catchment area, is also a water body occupying 66.70
acres
and holds 15.79 mc. Ft. of water when full.
It is pertinent to submit in this context that under
the
"Neeru Meeru" programme vigorously pursued by the
Government in the entire State, construction of such
check
dams, percolation tanks etc. was conceived and
executed for
improving the water table and water conservation and
efficient
use of rain water without wastage at considerable
cost.
3. Nakkala vanka and Bodeddulu Vanka : prior
to the construction
of Dalavai tank in the catchment area, water used to
flow
downstream to peruru tank through Nakkalavanka and
Bnodeddula Vanka. After the construction of Dalavai
Tank, the
flow of water through Nakkalavanka and Bnodeddula
Vanka
has considerably reduced.
The Expert Committee after observing the above facts
in paragraphs 4 & 5
of its
report opined that the flow of water through
Bodeddulla Vanka to the
Peruru tank can be
restored by removing a small check dam at Malapalli
which it is
submitted might be
considered a retrograde step affecting other projects
for water
conservation. Learned
counsel further submitted that in view of the
aforesaid recommendation
of the Expert
Committee that instead of 20 acres as presently
assigned a minimum of 50
acres may
be utilised for a water body in the tank area may not
be a practicable
proposal.
However, the TTD would willingly and earnestly
endeavour to implement
the proposal if
this Court accepts and approves the Report of the
Expert Committee. In
our opinion, the
Expert Committee's report should be accepted by TTD.
Learned counsel
appearing for
the TTD at the time of argument, has also brought to
our notice some of the
programmes launched by TTD for sustainable improvement
of the living
environment.
Mr. P.S. Narasimha, learned counsel, submitted that no
competing or
conflicting
public interests arise in this case inasmuch as the
very subject of the
environment issue
has ceased to be a resource as it were.
The enquiry is, therefore, upon the very basic
question i.e. whether
there exist at
all a natural resource. The research is empirical and
not adjudication
or prioritisation of
conflicting public interest. A further question can
also be raised i.e.
even if the said
resource has deteriorated, is it possible to revive
its resource. The
adjudication in both
the appeals is confined to an empirical enquiry based
on scientific
data. The enquiry as
indicated above has already been done in this case.
It is in two stages.
STAGE ONE Till the judgment of the High Court of
Andhra Pradesh, which
dismissed
the writ petitions.
STAGE TWO Enquiry at the instance of this Court
pending disposal of the
special
leave petitions.
STAGE ONE -
Our attention was drawn to the counter affidavit dated
7.9.1994 of TUDA in
W.P.No. 8650 of 1994 which reads as under:
"The tank in question as could be seen from the
permanent `A'
Register (Re-settlement Registrar) was to be fed by
(1) Ramayapalli
Kasam Kalva (2) Kasam Kalva of Vedan thapuram
Agraharam (3)
Drainage water of Thummalapetta wet fields and (4) by
Nadim Kalva
which are almost defaced and as such there is no scope
for
accumulation of water in the tank. It is also
observed from a well
about 60 feet depth located on South-West corner of
the land that no
water exists in the well. The foreshore of the tank
is almost plain.
It is
an abandoned tank and the tank is also not receiving
any supply of
water due to closure of supply channels after the
construction of
Kalyani Dam Reservoir. "
STAGE TWO
The Inspection report of the Committee
constituted under the
directions of this Court considered various issues.
It is stated in the
report as
follows:
1. There is no tank existing in the area at
present. Remains of
the
original demolished bund were seen. The area upstream
was plain
with no indications of any water storage.
2. reported feeder channels to the tank are in
fact localized
drainage
lines which do not have any direct source of surface
water from the
nearby Tirumala hills. The tank might have receive
water as over flow
from Peruru tank located on west of Avilala tank.
As per the Respondents contention, the Tank in dispute
has been shown in
Resettlement Register `A'. For the purpose of change
of classification
from tank
poramboke to ayan, `A' notice was published in the
Avilala Village
displaying the said
notices at the conspicuous places which is statutory
and no objections
were received
and as stated already, consent letters were given by
the individual
ayacutdars for the
abandonment of the tank.
Proposals for abandonment of the erstwhile tank were
submitted by the
Revenue Divisional Officer, Tirupathi with reference
to the Collector's
letter No. B-
1/7089/88 dated 17.9.1988. A notice for public
response to the said
proposal was
published in the village but no objections were
received. As the land
was in the past
classified as a tank poramboke, technical opinion had
already been
obtained and the
Irrigation Department opined that there was no
objection for alienation
of the said
land. The opinion is in Collectorate reference No.
B-1/14157/85. As
per the report of
the Revenue Divisional Officer, Tirupathi submitted in
his letter No.
Roc. No.
G/2016/88 dated 6.9.1988 that the Avilala Gram
Panchayat in its
Resolution dated
14.8.1988 had resolved to alienate an extent of 90
acres in Sy. No. 18/3
of Avilala
village in favour of Andhra Pradesh Housing Board.
The materials
placed before us
and the report of the Expert Committee and the stand
taken by the
public bodies and
the rapid change in the demographic feature of the
Tirupathi town and
its surrounding
suburbs have necessitated the process of urbanization.
The TUDA in its additional counter affidavit filed on
21.2.2002 stated
that the
Tirupathi urban agglomeration as notified consists of
849 sq. Kms. with
one Municipality
and 89 villages. The total population of TUDA area is
4,88,248
according to 2001
census and the projected population by 2021 is
9,60,000. 49% of the urban
agglomeration is covered by Tirumala hills and forest
area and the
remaining area is
going to be developed into a Metropolis over the next
20 years,
according to the present
decadal population growth of 32% for TUDA region,
compared to 13% of
A.P. population
growth rate as per 2001 census. The growth of
population of Tirupathi
Municipal area
was highest during the decades of 1971 (83.68%) and in
1981 (75.10%) but
now
stabilized at nearly 30% (2001). But in respect of
the suburbs
surroundings Tirupathi,
which are fast growing recording very high population
growth rates, are
an indication
that TUDA area is one of the very fast developing
urban agglomerations
in the country.
Akkarampale (v) one of the suburbs with a population
of 20,325 recorded
250% of
decadal growth between 1991-2001. Similarly Avilala
(v) another suburb
of Tirupathi,
where "Rajivnagar", the land in question in the
present appeals, is
situated, the decadal
growth rate between 1991 and 2001 was above 150%. The
population of
Avilala (v)
which was 1141 in 1971, has grown to 12,058 by the
year 2001, while
converting most
of the agricultural lands into residential plots.
According to the
report of NRSA,
Hyderabad in July 2001 on "Land Use-Land Cover
Monitoring in TUDA area
with special
reference to Avilala Tank and Environs, Tirupathi,
A.P." the Avilala (v)
along with the
tank area which has a total extent of 942.47 hectares
of which
residential area was
32.91 hectares in 1976-77 has now increased to 349.28
hectares in the
year 2001,
which also includes institutional and industrial
areas. In respect of
agricultural lands,
which was 677.78 hectares in 1976-77 has been
diminished into 204.22
hectares in
2001. The high population growth rates of Avilala (v)
combined with
increase in the
residential area (961%) is a clear indication that the
original purpose
of Avilala tank as
irrigation tank, is no more relevant in the present
scenario of fast
urban development in
this area.
It has been further stated in the additional affidavit
filed by TUDA on
21.2.2002
that the TUDA has taken up revision of its master plan
with digitisation
of land use along
with a comprehensive development plan of the urban
agglomeration up to
2021, with
public participation. According to the said Master
plan prepared by
TUDA in 1981, the
said lands of Avilala (v) are earmarked under
residential zone and
development of
satellite township to ease the congestion on the main
city and the
purpose of retaining
irrigation tank in an extent of 150 acres at Avilala
near Tirupathi is
no longer useful to the
public under the circumstances explained.
In the counter affidavit filed by A.P. Housing Board
on 26.6.2000, it is
submitted
that the A.P. Housing Board paid Rs.90 lakhs towards
the cost of the
land @ Rs.1 lakh
for each acre to the Government and also spent a sum
of Rs. 88.43 lakhs
towards
development of the land so far. Thus, in all APHB has
invested a sum of
Rs.1,78,43,000/- and the further development was
stopped in view of the
pendency of
the writ petition.
The area around the property in question is fully
developed. There is a
weaver's
colony, PR Engineers Colony, Judicial Employees Plots
and Colony and
Balai Dairy (in
10 acres of land APDDCF). Thus, the area around the
land in question
is already
developed and several colonies have come up and in any
event the land
cannot be used
as reservoir.
As per the notification, APHB has proposed about 342
HIG design, 497 MIG-2
design and 283 MIG-1 design houses with the details
mentioned therein
totalling about
1126 houses in the said proposed colony. The details
of number of
houses to be
allotted under different categories and modes like
outright sale,
allotment on payment of
50%, 30% amount etc., are also mentioned in the said
notification. It
also provided
reservation for various categories like 5% of houses
to Legislators, 5%
to defence
people, 14% for SC, 4% for ST, 9% for OBC, 10% for
retired Government
employees,
1% for physically handicapped, 1% for freedom fighters
and 51% for other
categories.
The applicants under the above-referred notifications
are the persons
having no
plot or no house for their residence in Tirupathi or
nearby places and
as such they are in
dire need of a place of residence which is sought to
be fulfilled under
the above scheme
by the APHB.
It is also seen from the additional counter affidavit
dated 21.2.2002
filed by TUDA
that they have taken up revision of its Master plan
with digitisation of
land use along with
a comprehensive development plan of the urban
agglomeration up to 2021,
with public
participation. According to the Master plan prepared
by TUDA in 1981,
the said lands of
Avilala (v) are earmarked under residential zone and
development of
satellite township
to ease the congestion on the main city.
It was also submitted that subsequent to the filing of
the present appeals,
substantial developments have taken place which can be
summed up here.
As stated
in the counter affidavit filed by TUDA on dt.
29.11.2001, after the
dismissal of
Writ Petition No.8650 of 1994 by the High Court on
dated 28.9.2000, TUDA
submitted
the entire scheme of sites and services to be taken up
at Rajiv Nagar at
a cost of
Rs.600 lakhs to the State Government for approval vide
its letter
No.2148/G1/99 dated
3.12.1999. The State Government vide G.. Rt. No. 124
M.A. dated
15.2.2001 had
approved the proposal of TUDA.
Mr. Jaideep Gupta, learned senior counsel appearing
for the TUDA, has
placed
before us a report on Land Use Land Cover Monitoring
in TUDA area with
special
reference to Avilala Tank and Environs Tirupathi. The
main objective of
this study was:
1. To map and estimate the water bodies and
drainage pattern
within the TUDA
limits and to suggest the water conservation plan, on
a scale of
1:50,000 using
satellite and other collateral data.
2. To monitor the changes in and around the
Avilala Tank over a
period from 1976-
2001 and carry out the change analysis.
The report contains all meticulous details about the
study area, data base,
advantages and limitations of satellite data,
methodology, analysis and
observations, water resources analysis of TUDA area,
land use/land cover
analysis
of Avilala tank and its environs. The report has been
prepared in a
meticulous
manner with reference to various plans. Another
report was also
submitted with
regard to the Revitalisation of Lakes in TUDA Region
which also contains
many
details about the land use of TUDA Region and the
conservation and
preservation
of water bodies and the identification of potential
tanks for
conservation and the
salient proposals for revitalisation of identified
tanks. The Salient
proposals for
revitalisation of tanks are as under:
On realizing the importance of restoration
of tank basins
towards conservation of
water and recharging of ground water, increase the
storage capacity of
tanks,
renovating the tank bunds as well as feeder channels,
TUDA has taken
over 30
tanks in its operational area for taking up the
improvements. Proposals
include
removal or eviction of encroachments, desilting of
tank basins, clearing
of jungle,
strengthening of tank bunds, excavation of boundary
trenches, widening and
excavation of feeder channels, construction of
boundary pillars and
compound walls
along the tank boundary. Block plantation, programmes
for development as
landscaped parks and water based entertainment units
for the benefit of
the public
in off shore areas of the tanks have been proposed
wherever feasible and
viable.
Towards protection of environment, provision for
treatment system is
also made in
the project to take care of entry of drainage/sullage
into the tank
storages. Block
plantation on all on-shore areas of tank have been
taken up as a part of
Neeru
Meeru programme to prevent erosion of soils and entry
of encroachments
which will
have long term positive environment results.
As per the estimates prepared, the total cost of the
scheme works out to
Rs.993.64 lakhs for taking up the above programmes in
32 tanks spread
over 32
settlements around Tirupathi town and in TUDA region.
The abstract
statement
showing the details of tanks proposed for
revitalization and the cost of
development
is given below:
(Rs. In lakhs)
S.N o.
Mandal
No. of tanks
Cost of development
Cost of greening/landscaping Programme
Total
1.
Tirupati(U) Mandal
10
387.84
82.50
470.34
2.
Tirupati(R) Mandal
10
203.10
64.90
268.00
3.
Reningunta Mandal
9
129.50
47.60
177.10
4.
Chandragir Mandal
3
71.70
6.50
78.20
Total
32
792.14
201.50
993.64
As already noticed, the Expert Committee in its
Inspection Report, has
gone
into various technical details about the cause for
gradual reduction of
inflow of water to
the Peruru tank, which is a rain-fed tank, over the
last 50 years. The
Committee has
observed in its report that the reduction in the
inflow of water to the
tank was due to the
construction of 22 check dams, 8 percolation tanks,
437 rock fill dams
and contour
trench on a length of 1.22 km for water conservation
and efficient use
of rain water
without wastage. The Committee has also observed in
its Report that the
main supply
channel to the Peruru tank was affected due to the
revival of Dalavai
Tank situated at a
distance of about 2 Kms upstream in the catchment
area.
The Expert Committee in its report has suggested some
additional
measures for
rain water harvesting by providing for a percolation
tank in an area of
50 acres instead of
20 acres already earmarked for the said purpose by the
Revenue
authorities with roof
top rain water harvesting and artificial recharge
The Expert Committee has gone into various technical
and cost aspects about
the feasibility of reviving the Peruru tank. Only
after the Committee
found that the tank
could not be revived in its original form, it
suggested in its report
for construction of
percolation tank and roof top rain water harvesting
and artificial
recharge for increasing
the ground water level.
A careful perusal of the report would clearly reveal
that the Committee
has given
its suggestions only after taking into account various
possibilities in
recharging the
ground water level. It is not proper in doubting the
correctness of the
Committee's report
as contended by the appellants. The Committee, in our
view, has gone
into the details
about the revival of the feeder channel to the Peruru
tank from
Swarnamukhi river and
having regard to the impracticability of restoring the
same as feeder
channel had
suggested an alternative which in their view, is
feasible and beneficial.
It is evident from the report of the Expert Committee
that the Members
of the
Expert Committee have taken technical aspects as
contained therein and the
objections of the appellant in this regard are
untenable. The
Government of Andhra
Pradesh has also taken various steps pursuant to the
directions given by
this Court
which could be seen from the additional affidavit
dated 25.3.2005 filed
by the State of
Andhra Pradesh.
We have given our thoughtful and careful consideration
to the sensitive
issues
raised in the appeals by the appellants and countered
by the respective
respondents
with reference to the pleadings, the documents,
annexures filed and
judgment of the
High Court. We have also carefully perused the report
submitted by the
Expert
Committee and also considered the rival submissions
made by the
respective counsel.
In our opinion, the nature of the question in this
case is twofold.
Firstly, the
jurisprudential issues. In the event of conflict
between the competing
interests of
protecting the environment and social development,
this Court in the
case of M.C.
Mehta v. Kamal Nath, 1997(1) SCC 388, in paragraph 35
held as under:
"The issues presented in this case illustrate the
classic struggle
between those members of the public who would preserve
our rivers,
forests, parks and open lands in their pristine
purity and those
charged with administrative responsibility, who under
the pressures of
the changing needs of an increasingly complex society
find it necessary
to encroach to some extent upon open lands heretofore
considered
inviolate to change. The resolution of this conflict
in any given case
is for the legislature and not for the Courts. If
there is a law made
by Parliament or the State Legislatures, the Courts
can serve as an
instrument for determining legislative intent in the
exercise of powers
of judicial review under the Constitution. But, in
the absence of any
legislation, the executive acting under the doctrine
of public trust
cannot abdicate the natural resource and convert them
into private
ownership or commercial use. The aesthetic use and
the pristine glory
of the natural resources, the environment and the
ecosystems of our
country cannot be permitted to be eroded for private,
commercial or any
other use unless the Courts find it necessary, in good
faith, for the
public and in public interest to encroach upon the
said recourses."
The responsibility of the state to protect the
environment is now a
well-accepted
notion in all countries. It is this notion that, in
international law,
gave rise to the principle
of "state responsibility" for pollution emanating
within one's own
territories [Corfu
Channel Case, ICJ Reports (1949) 4]. This
responsibility is clearly
enunciated in the
United Nations Conference on the Human Environment,
Stockholm 1972
(Stockholm
Convention), to which India was a party. The relevant
Clause of this
Declaration in the
present context is Paragraph 2, which states:
"The natural resources of the earth, including the
air, water, land, flora
and fauna and especially representative samples of
natural
ecosystems, must be safeguarded for the benefit of
present and future
generations through careful planning or management, as
appropriate. "
Thus, there is no doubt about the fact that there is a
responsibility
bestowed upon the
Government to protect and preserve the tanks, which
are an important
part of the
environment of the area.
Sustainable Development
The respondents, however, have taken the plea that the
actions taken by the
Government were in pursuance of urgent needs of
development. The debate
between
the developmental and economic needs and that of the
environment is an
enduring
one, since if environment is destroyed for any purpose
without a compelling
developmental cause, it will most probably run foul of
the executive and
judicial
safeguards. However, this court has often faced
situations where the
needs of
environmental protection have been pitched against the
demands of economic
development. In response to this difficulty, policy
makers and judicial
bodies across the
world have produced the concept of "sustainable
development". This
concept, as
defined in the 1987 report of the World Commission on
Environment and
Development
(Brundtland Report) defines it as "Development that
meets the needs of
the present
without compromising the ability of the future
generations to meet their
own needs".
Returning to the Stockholm Convention, a support of
such a notion can be
found in
Paragraph 13, which states:
"In order to achieve a more rational management of
resources and
thus to improve the environment, States should adopt
an integrated
and coordinated approach to their development planning
so as to
ensure that development is compatible with the need to
protect and
improve environment for the benefit of their
population. "
Subsequently the Rio Declaration on Environment and
Development, passed
during the
Earth Summit at 1992, to which also India is a party,
adopts the notion
of sustainable
development. Principle 4 of the declaration states:
"In order to achieve sustainable development,
environmental
protection shall constitute an integral part of the
development process
and cannot be considered in isolation from it. "
This court in the case of Essar Oil v. Halar Utkarsh
Samiti, [2004 (2) SCC
392, Para 27] was pleased to expound on this. Their
Lordships held:
"This, therefore, is the sole aim, namely, to balance
economic and
social needs on the one hand with environmental
considerations on
the other. But in a sense all development is an
environmental threat.
Indeed, the very existence of humanity and the rapid
increase in
population together with the consequential demands to
sustain the
population has resulted in the concreting of open
lands, cutting down
of forests, filling up of lakes and the pollution of
water resources and
the very air that we breathe. However there need not
necessarily be a
deadlock between development on the one hand and the
environment on the other. The objective of all laws on
environment
should be to create harmony between the two since
neither one can
be sacrificed at the altar of the other. "
A similar view was taken by this Court in Indian
Council for
Enviro-Legal Action v.
Union of India, [1996 (5) SCC 281, Para 31] where
their Lordships said:
"While economic development should not be allowed to
take place at
the cost of ecology or by causing widespread
environmental
destruction and violation; at the same time the
necessity to preserve
ecology and environment should not hamper economic and
other
developments. Both development and environment should
go hand
in hand, in other words, there should not be
development at the cost
of environment and vice versa, but there should be
development
while taking due care and ensuring the protection of
the environment.
"
The concept of sustainable development also finds
support in the
decisions of this court
in the cases M.C. Mehta v. Union of India (Taj
Trapezium Case), (1997) 2
SCC 653,
State of Himachal Pradesh v. Ganesh Wood
Products,(1995) 3 SCC 363 and
Narmada Bachao Andolan v. Union of India, (2002) 10
SCC 664.
In light of the above discussions, it seems fit to
hold that merely
asserting an
intention for development will not be enough to
sanction the destruction
of local
ecological resources. What this Court should follow is
a principle of
sustainable
development and find a balance between the
developmental needs which the
respondents assert, and the environmental degradation,
that the
appelants allege.
Public Trust Doctrine
Another legal doctrine that is relevant to this matter
is the Doctrine
of Public Trust. This
doctrine, though in existence from Roman times, was
enunciated in its
modern form by
the US Supreme Court in Illinois Central Railroad
Company v. People of
the State
of Illinois, [146 US 537 (1892)] where the Court held:
The bed or soil of navigable waters is held by the
people of the State
in their character as sovereign, in trust for public
uses for which they
are adapted.
[] the state holds the title to the bed of navigable
waters upon a
public trust, and no alienation or disposition of such
property by the
State, which does not recognize and is not in
execution of this trust is
permissible.
What this doctrine says therefore is that natural
resources, which
includes lakes, are
held by the State as a "trustee" of the public, and
can be disposed of
only in a manner
that is consistent with the nature of such a trust.
Though this doctrine
existed in the
Roman and English Law, it related to specific types of
resources. The US
Courts have
expanded and given the doctrine its contemporary shape
whereby it
encompasses the
entire spectrum of the environment.
The doctrine, in its present form, was incorporated as
a part of Indian
law by this
Court in the case of M.C. Mehta v. Kamal Nath ,
(supra) and also in
M.I. Builders v.
Radhey Shyam Sahu, (1999) 6 SCC 464. In M.C. Mehta,
Kuldip Singh J.,
writing for
the majority held:
[our legal system] includes the public trust doctrine
as part of its
jurisprudence. The state is the trustee of all natural
resources which
are by
nature meant for public use and enjoyment. [] The
state as a trustee is
under the legal duty to protect the natural resources.
[Para 22]
The Supreme Court of California, in the case of
National Audubon Society v.
Superior Court of Alpine Country, 33 Cal.419 also
known as the Mono Lake
case
summed up the substance of the doctrine. The Court
said:
Thus the public trust is more than an affirmation of
state power to use
public
property for public purposes. It is an affirmation of
the duty of the
State to
protect the people's common heritage of streams,
lakes, marshlands and
tidelands., surrendering the right only in those rare
cases when the
abandonment of the right is consistent with the
purposes of the trust.
This is an articulation of the doctrine from the angle
of the
affirmative duties of the State
with regard to public trust. Formulated from a
negatory angle, the
doctrine does not
exactly prohibit the alienation of the property held
as a public trust.
However, when the
state holds a resource that is freely available for
the use of the
public, it provides for a
high degree of judicial scrutiny upon any action of
the Government, no
matter how
consistent with the existing legislations, that
attempts to restrict
such free use. To
properly scrutinize such actions of the Government,
the Courts must make
a distinction
between the government's general obligation to act for
the public
benefit, and the
special, more demanding obligation which it may have
as a trustee of
certain public
resources, [Joseph L. Sax "The public Trust Doctrine
in Natural Resource
Law:
Effective Judicial Intervention", Michigan Law Review,
Vol.68 No.3
(Jan.1970) PP 471-
566)]. According to Prof. Sax, whose article on this
subject is
considered to be an
authority, three types of restrictions on governmental
authority are
often thought to
imposed by the public trust doctrine [ibid]:
1. the property subject to the trust must not
only be used for a
public purpose, but it
must be held available for use by the general public;
2. the property may not be sold, even for fair
cash equivalent
3. the property must be maintained for
particular types of use.
(i) either traditional
uses, or (ii) some uses particular to that form of
resources.
In the instant case, it seems, that the Government
Orders, as they stand
now, are
violative of principles 1 and 3, even if we overlook
principle 2 on the
basis of the fact
that the Government is itself developing it rather
than transfering it
to a third party for
value.
Therefore, our order should try to rectify these
defects along with
following the
principle of sustainable development as discussed
above.
Further the principle of "Inter-Generational Equity"
has also been adopted
while determining cases involving environmental
issues. This Court in
the case of A.P.
Pollution Control Board vs Prof. M.V. Nayudu & Ors.
(1999) 2 SCC 718 in
paragraph
53 held as under:
"The principle of inter-generational equity is of
recent
origin. The 1972 Stockholm Declaration refers to it
in principles
1 and 2. In this context, the environment is viewed
more as a
resource basis for the survival of the present and
future
generations.
Principle 1 - Man has the fundamental right to
freedom,
equality and adequate conditions of life, in an
environment of
quality that permits a life of dignity and well-being,
and he bears
a solemn responsibility to protect and improve the
environment
for the present and future generations
Principle 2 The natural resources of the earth,
including the air, water, lands, flora and fauna and
especially
representative samples of natural ecosystems, must be
safeguarded for the benefit of the present and future
generations through careful planning or management, as
appropriate."
Several international conventions and treaties have
recognized the above
principles and, in fact, several imaginative proposals
have been
submitted including the
locus standi of individuals or groups to take out
actions as
representatives of future
generations, or appointing an ombudsman to take care
of the rights of
the future
against the present (proposals of Sands and Brown
Weiss referred to by
Dr. Sreenivas
Rao Permmaraju, Special Rapporteur, paras 97 and 98 of
his report).
The principles mentioned above wholly apply for
adjudicating matters
concerning environment and ecology. These principles
must, therefore,
be applied in
full force for protecting the natural resources of
this country.
Art. 48-A of the Constitution of India mandates that
the State shall
endeavour to
protect and improve the environment to safeguard the
forests and wild
life of the country.
Art.51A of the Constitution of India, enjoins that it
shall be the duty
of every citizen of
India, inter alia, to protect and improve national
environment including
forests, lakes,
rivers, wild life and to have compassion for living
creatures. These
two Articles are not
only fundamental in the governance of the country but
also it shall be
the duty of the
State to apply these principles in making laws and
further these two
articles are to be
kept in mind in understanding the scope and purport of
the fundamental
rights
guaranteed by the Constitution including Articles 14,
19 and 21 of the
Constitution of
India and also the various laws enacted by the
Parliament and the State
Legislature.
On the other hand, we cannot also shut our eyes that
shelter is one of
the basic
human needs just next to food and clothing. Need for
a National Housing
and Habitat
Policy emerges from the growing requirements of
shelter and related
infrastructure.
These requirements are growing in the context of rapid
pace of
urbanization, increasing
migration from rural to urban centres in search of
livelihood, mis-match
between
demand and supply of sites and services at affordable
cost and inability
of most new
and poorer urban settlers to access formal land
markets in urban areas
due to high
costs and their own lower incomes, leading to a
non-sustainable
situation. This policy
intends to promote sustainable development of habitat
in the country,
with a view to
ensure equitable supply of land, shelter and services
at affordable prices.
The World has reached a level of growth in the 21st
Century as never before
envisaged. While the crisis of economic growth is
still on, the key
question which often
arises and the Courts are asked to adjudicate upon is
whether economic
growth can
supersede the concern for environmental protection and
whether sustainable
development which can be achieved only by way of
protecting the
environment and
conserving the natural resources for the benefit of
the humanity and
future generations
could be ignored in the garb of economic growth or
compelling human
necessity. The
growth and development process are terms without any
content, without an
inkling as to
the substance of their end results. This inevitably
leaves us to the
conception of growth
and development which sustains from one generation to
the next in order
to secure `our
common future'. In pursuit of development, focus has
to be on
sustainability of
development and policies towards that end have to be
earnestly
formulated and
sincerely observed. As Prof. Weiss puts it,
"conservation, however,
always takes a back
seat in times of economic stress." It is now an
accepted social
principle that all human
beings have a fundamental right to a healthy
environment, commensurate
with their well
being, coupled with a corresponding duty of ensuring
that resources are
conserved and
preserved in such a way that present as well as the
future generations
are aware of
them equally.
The Parliament has considerably responded to the call
of the Nations for
conservation of environment and natural resources and
enacted suitable laws.
The Judicial Wing of the country, more particularly,
this Court has laid
down a
plethora of decisions asserting the need for
environmental protection
and conservation
of natural resources. The environmental protection
and conservation of
natural
resources has been given a status of a fundamental
right and brought
under Art. 21 of
the Constitution of India. This apart, the Directive
Principles of
State Policy as also the
fundamental duties enshrined in Part IV and Part IVA
of the Constitution
of India
respectively also stresses the need to protect and
improve the natural
environment
including the forests, lakes, rivers and wild-life and
to have
compassion for living
creatures.
This Court in Dahanu Taluka Environmental Protection
Group and Ors. Vs.
Bombay Suburban Electricity Supply Co. Ltd. & Ors.
(1991) 2 SCC 539 held
that the
concerned Government should "consider the importance
of public projects
for the
betterment of the conditions of living people on one
hand and the
necessity for
preservation of social and ecological balance and
avoidance of
deforestation and
maintenance of purity of the atmosphere and water free
from pollution on
the other in the
light of various factual, technical and other aspects
that may be
brought to its notice by
various bodies of laymen, experts and public workers
and strike a
balance between the
two conflicting objectives."
However, some of the environmental activists, as noted
in the "The
Environmental Activities Hand Book' authored by
Gayatri Singh, Kerban
Ankleswaria
and Colins Gonsalves, that the Judges are carried away
by the money
spent on projects
and that mega projects, that harm the environment are
not condemned.
However, this
criticism seems to be baseless since in Virender Gaur
& Ors. Vs. State
of Haryana &
Ors., (1995) 2 SCC 577, this Court insisted on the
demolition of
structure which have
been constructed on the lands reserved for common
purposes and that this
Court did
not allow its decision to be frustrated by the actions
of a party. This
Court followed the
said decision in several cases issuing directions and
ensuring its
enforcement by
nothing short of demolition or restoration of status
quo ante. The fact
that crores of
rupees was spent already on development projects did
not convince this
Court while
being in a zeal to jealously safeguarding the
environment and in
preventing the abuse of
the environment by a group of humans or the
authorities under the State
for that matter.
The set of facts in the present case relates to the
preservation of and
restoration
of status quo ante of two tanks, historical in nature
being in existence
since the time of
Srikrishnadevaraya, The Great, 1500 A.D., where the
cry of socially
spirited citizens
calling for judicial remedy was not considered in the
right perspective
by the Division
bench of the High Court of Andhra Pradesh despite
there being
overwhelming evidence
of the tanks being in existence and were being put to
use not only for
irrigation purpose
but also as lakes which were furthering percolation to
improve the
ground water table,
thus serving the needs of the people in and around
these tanks. The
Division Bench of
the High Court, in the impugned order, has given
precedence to the
economic growth by
completely ignoring the importance and primacy
attached to the
protection of
environment and protection of valuable and most
cherished fresh water
resources.
No doubt, the wishful thinking and the desire of the
appellant- forum ,
that the
Tanks should be there, and the old glory of the tanks
should be
continued, is laudable.
But the ground realities are otherwise. We have
already noticed the
ground realities as
pointed out by the Government of Andhra Pradesh, TUDA
and TTD in their
reply to the
Civil appeals by furnishing details, datas and
particulars. Now a days
because of the
poverty and lack of employment avenues, migration of
people from rural
areas to urban
areas is a common phenomenon. Because of the limited
infrastructure of
the towns, the
towns are becoming slums. We, therefore, cannot
countenance the
submissions made
by the appellant in regard to the complete restoration
and revival of
two tanks in the
peculiar facts and circumstances of this case. We
cannot, at the same
time, prevent the
Government from proceeding with the proper development
of Tirupathi
town. The two
Government Orders which are impugned have been issued
long before and
pursuant to
the issuance of the Government Orders, several other
developments have
taken place.
Constructions and improvements have been made in a
vast measure.
Because of
spending crores and crores of rupees by various
authorities, the only
option now left to
the appellant and the respondents is to see that the
report submitted by
the Expert
Committee is implemented in its letter and spirit and
all the
respondents shall cooperate
in giving effect to the Committee's report.
It is true that the tank is a communal property and
the State
authorities are
trustees to hold and manage such properties for the
benefits of the
community and they
cannot be allowed to commit any act or omission which
will infringe the
right of the
Community and alienate the property to any other
person or body.
Taking into account all these principles of law, and
after considering the
competing claims of environment and the need for
housing, this Court
holds the
following as per the facts of this case.
The Respondents have claimed that the valuable right
to shelter will be
violated
if the impugned Government Orders are revoked. On the
facts of the
present case, it
seems that the respondents intend to build residential
blocks of flat
for High and Middle
income families, institutions as well as
infrastructure for the TTDS. If
the proposed
constructions are not carried on, it seems unlikely
that anyone will be
left homeless or
without their basic need for shelter. Therefore, one
feels that the
right to shelter does
not seem to be so pressing under the present
circumstances so as to
outweigh all
environmental considerations.
Another plea repeatedly taken by the respondents
correspond to the money
already spent on developing the land. However, the
decision of this case
cannot be
based solely upon the investments committed by any
party. Since,
otherwise, it would
seem that once any party makes certain investment in a
project, it would
be a fait
accompli and this Court will not have any option but
to deem it legal.
Therefore, under the present circumstances, the Court
should do the most
it can
to safeguard the two tanks in question. However, due
to the persistent
developmental
activities over a long time, much of the natural
resources of the lakes
has been lost, and
considered irreparable. This, though regrettable, is
beyond the power of
this court to
rectify.
One particular feature of this case was the competing
nature of claims
by both
the parties on the present state of the two tanks and
the feasibility of
their revival. We
thought that it would be best, therefore, if we place
reliance on the
findings of the expert
committee appointed by us which has considered the
factual situation and
the feasibility
of revival of the two tanks. Thus in pursuance of a
study of that
committee, this Court
passes the following orders.
The appeals are disposed of with the following
directions:
With regard to Peruru tank:
(i) No further constructions to be made.
(ii) The supply channel of Bodeddula Vanka
needs to be cleared
and revitalized.
A small check dam at Malapali to be removed to ensure
the free flow and
supply to the tank.
(iii) Percolation tank to be constructed and
artificial recharge
to be done to
ensure the revival of the tank, keeping in mind its
advantage at being
situated at the foot hills.
(iv) The area allotted by Mandal Revenue Office
for construction
of the tank to be
increased to a minimum of 50 acres. Percolation tank
with sufficient number
of recharge shafts to be developed to recharge the
unsaturated horizons up
to 20 m. The design of the shafts etc. to be prepared
in consultation
with the
CGWB. The proposed percolation tank to be suitably
located along the bund
keeping in view the inlets, irrigation sluices and
surplus water.
(v) Feasibility and cost estimation for the
revival of the old
feeder channel for
Swarnamukhi River should be carried and a report to be
submitted to the
Court.
(vi) Each house already constructed by the TTD
must provide for
roof top rain
water harvesting. Abstraction from ground water to be
completely banned.
No borewell/ tubewell for any purpose to be allowed in
the area.
(vii) Piezometers to be set up at selected
locations, in
consultation with the
CGWB to observe the impact of rain water harvesting in
the area on ground
water regime.
With regard to Avilala tank:
(i) No further construction to be allowed in
the area.
(ii) Each house already constructed by the
APHB/ TUDA must
provide structure
for roof top rain water harvesting. All the storm
water in the already
built
colonies to be recharged to ground water. Structures
for such purposes
to be
designed in consultation with the CGWB.
(iii) No borewell/ tubewell for any purpose to
be allowed in the
area.
(iv) An area of 40 acres presently reserved for
the Government
should not be
developed in any way that may lead to concretization
of the ground surface.
Recharge structures to be constructed for rainwater
harvesting.
(v) Piezometers to be set up at selected
locations, in
consultation with the
CGWB to observe the impact of rain water harvesting in
the area on ground
water regime.
We place on record our deep appreciation for the
valuable assistance
rendered
by all the counsel appearing in this case which made
our job easier.
The appeals are disposed of accordingly no costs.
__________________________________________________
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